Ruby v. Insurance Com'n of West Virginia

• Decision Date: 13 June 1996
• Docket Number: No. 23037,23037
• Citation: 197 W.Va. 27,475 S.E.2d 27
• Court: West Virginia Supreme Court
• Parties: Helen RUBY, Appellant Below, Appellant, v. INSURANCE COMMISSION OF WEST VIRGINIA, Appellee Below, Appellee.

Page 27

475 S.E.2d 27

197 W.Va. 27

Helen RUBY, Appellant Below, Appellant, v. INSURANCE COMMISSION OF WEST VIRGINIA, Appellee Below, Appellee.

No. 23037.

Supreme Court of Appeals of West Virginia.

Submitted April 23, 1996.

Decided June 13, 1996.

[197 W.Va. 29] Syllabus by the Court

1. "This Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo." Syl. pt. 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).

2. "Upon judicial review of a contested case under the West Virginia Administrative Procedure Act, Chapter 29A, Article 5, Section 4(g), the circuit court may affirm the order or decision of the agency or remand the case for further proceedings. The circuit court shall reverse, vacate or modify the order or decision of the agency if the substantial rights of the petitioner or petitioners have been prejudiced because the administrative findings, inferences, conclusions, decisions or order are: '(1) In violation of constitutional or statutory provisions; or (2) In excess of the statutory authority or jurisdiction of the agency; or (3) Made upon unlawful procedures; or (4) Affected by other error of law; or (5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.' " Syllabus Point 2, Shepherdstown Volunteer Fire Dept. v. State ex rel. State Human Rights Comm'n, 172 W.Va. 627, 309 S.E.2d 342 (1983).

3. "Evidentiary findings made at an administrative hearing should not be reversed unless they are clearly wrong." Syllabus Point 1, Francis O. Day Co. v. Director, Division of Environmental Protection, 191 W.Va. 134, 443 S.E.2d 602 (1994).

4. "In an action to redress unlawful discriminatory practices in employment and access to 'place[s] of public accommodations' under The West Virginia Human Rights Act, as amended, W.Va.Code, 5-11-1 et seq., the burden is upon the complainant to prove by a preponderance of the evidence a prima facie case of discrimination, which burden may be carried by showing (1) that the complainant belongs to a protected group under the statute; (2) that he or she applied and was qualified for the position or opening; (3) that he or she was rejected despite his or her qualifications; and (4) that after the rejection the respondent continued to accept the applications of similarly qualified persons. If the complainant is successful in creating this rebuttable presumption of discrimination, the burden then shifts to the respondent to offer some legitimate and nondiscriminatory reason for the rejection. Should the respondent succeed in rebutting the presumption of discrimination, then the complainant has the opportunity to prove by a preponderance of the evidence that the reasons offered by the respondent were merely a pretext for the unlawful discrimination." Syllabus Point 3, Shepherdstown Volunteer Fire Dept. v. State ex rel. State Human Rights Comm'n, 172 W.Va. 627, 309 S.E.2d 342 (1983).

Michael R. Cline, Charleston, for Appellant.

Donna S. Quesenberry, Associate Counsel, West Virginia Insurance Commission, Charleston, for Appellee.

PER CURIAM:

Helen Ruby appeals the decision of the Circuit Court of Kanawha County finding that the termination of her employment with the Insurance Commission of West Virginia was caused by a reduction-in-force and not in retaliation for her testimony against the Insurance Commission in another unrelated matter. On appeal, Ms. Ruby argues that the record, by preponderating evidence, shows that her employment termination was retaliatory. Ms. Ruby specifically relies on a conversation between her and Thomas Trent, a lawyer for the Insurance Commission in the other unrelated matter, which was overheard by a co-worker. The Insurance Commission maintains that Ms. Ruby's dismissal was necessitated by a budget problem that required the elimination of the position Ms. Ruby held. Because the record supports the circuit court's decision that Ms. Ruby's dismissal resulted from a reduction-in-force, we affirm the decision of the circuit court. I.

FACTS AND PROCEDURAL BACKGROUND

Ms. Ruby was first employed by the Insurance Commission in February 1964. At the time of her dismissal on January 28, 1983 ¹, the Insurance Commission employed Ms. Ruby as one of two paralegal clerks. ² During Ms. Ruby's employment, another employee, George Conner, was dismissed by Robert Shaw, who then was the West Virginia Insurance Commissioner. Ms. Ruby alleges that Thomas Trent, Esq., a West Virginia Assistant Attorney General who was representing the Insurance Commission in the George Conner case (hereinafter the Conner matter), told her not to testify on behalf of Mr. Conner and threatened her with dismissal if she testified. Pursuant to a subpoena, Ms. Ruby testified at Mr. Conner's civil service hearing. Mr. Conner's reinstatement with backpay was ordered by the circuit court on November 8, 1982. Ms. Ruby contends that the atmosphere of her workplace became negative toward her after Mr. Conner's reinstatement. ³ Ms. Ruby also notes that after almost nineteen (19) years of service, she was given no notice of her dismissal, which occurred about two and a half (2 1/2) months after Mr. Conner's reinstatement.

On January 28, 1983, the Insurance Commission dismissed Ms. Ruby claiming her layoff resulted from a reduction-in-force necessitated by a statewide revenue short-fall. During fiscal year 1982-83, the economy of West Virginia experienced a prolonged cyclical downturn. On November 18, 1982, then Governor Rockefeller imposed a spending and hiring freeze on all state agencies and ordered a three (3) percent reduction in spending authority. On January 5, 1983, because of the bleak economical situation, the Governor requested all spending state agencies to submit proposals reflecting reductions of thirteen (13) and seven and a half (7.5) percent of their spending authority for fiscal year 1982-83. On January 10, 1983, the Insurance Commission submitted its proposals. On January 13, 1983, the Governor issued Executive Order 4-83 imposing a ten (10) percent reduction for fiscal year 1982-83 and requested all spending agencies to submit revised expenditure schedules by January 17, 1983. Executive Order 4-83 noted that "layoffs will be necessary throughout State government."

In response to Executive Order 4-83, the Insurance Commission reduced its non-personnel accounts, namely, the equipment account, by forty (40) percent and the current expenses account, by fourteen (14) percent. Because these reductions resulted in an overall budget reduction of three (3) percent, in order to comply with Executive Order 4-83, the Insurance Commission had to reduce its personnel account by seven (7) percent to achieve the required overall goal of a ten (10) percent reduction. After considering the agency's statutory and regulatory obligations, the Insurance Commissioner decided to layoff the two employees in the paralegal assistant class. Except for the legal division, all the other division directors in the Insurance Commission requested that the cuts come from another division because of the work handled by that division. Cheryl Davis, Esq., the legal division's director, indicated that with some clerical assistance her division would be able to function without the two paralegals. The Insurance Commission maintains that because Mrs. Ruby was employed as a paralegal, her dismissal was the direct result of Executive Order 4-83. During fiscal year 1982-83, the Insurance Commission notes that a total of 554 state employees in classified service were dismissed because of the budget cuts.

We note that the parties agree that in fiscal year 1982-83, there was a statewide economic crisis and the parties also agree that all civil service regulations relating to the alleged reduction-in-force were fully complied with in Ms. Ruby's case.

Ms. Ruby's appeal of her dismissal to the West Virginia Civil Service Commission (hereinafter the Civil Service Commission) on February 24, 1983 began the long and involved process that finally resulted in her present appeal before this Court. On March 31, 1983, the Civil Service Commission dismissed Ms. Ruby's appeal without a hearing. Because she was denied a hearing, Ms. Ruby appealed to the circuit court, which by order entered on May 17, 1984, required the Civil Service Commission to hold a hearing. The Insurance Commission appealed the May 17, 1984 order to this Court, which on February 28, 1985, declined to hear the appeal. Ruby v. Department of Insurance, appeal refused, No. 850058A (Feb. 28, 1985). After the Civil Service Commission granted Ms. Ruby an appeal date, on July 30, 1986, the Civil Service Commission, because of questions concerning the scope of the hearing, requested the circuit court to specify the matters to be heard.

On April 30, 1990, the circuit court entered an order referring the matter to the West Virginia Education and State Employees Grievance Board for a hearing on "whether or not there was just cause for dismissal of Helen Ruby as an employee of the West Virginia Department of Insurance." The Insurance Commission, alleging that the Grievance Board lacked subject matter jurisdiction because the State Personnel Board had been vested with the duties and responsibilities formerly possessed by the Civil Service Commission, moved the circuit court to dismiss its referral to the Grievance Board. After the motion was denied, the Grievance Board held a hearing on January 15 and 16, 1992. After the Grievance Board ruled in favor of Ms. Ruby, the Insurance Commission again asserting the Grievance Board's lack of jurisdiction appealed to the circuit court.

By order entered on May 21, 1993, the circuit court...